1833. DOE dem. SMITH against BIRD and Another. EJECTMENT for one fourth of several copyhold estates, situate in the manor of West Walton cum Membris, on the part of Emneth, and other manors in the county of Norfolk. A verdict was found for the lessor of the plaintiff, subject to the opinion of this Court on the following case : sion of their intended mar- place), con- themselves and of them for life, then for the benefit of In the year 1777, Mrs. Warren (then Elizabeth South- the benefit of well), and her two sisters, Frances and Mary, were tenants in tail of part of the premises in question (being those comprised in the first count of the declaration), and tenants in fee of another part (comprised in the second count of the declaration), and also of certain freehold property. By a settlement in that year, made in contemplation of the intended marriage of Dr. Warren the issue of the the use of such wife by deed or last will, not withstanding and the said Elizabeth Southwell, they, Dr. Warren and her coverture, and as if she unmarried, should appoint, and in default of appointment, to the use of herself in fee. The wife, at the time of the marriage, was seised in tail of certain copyhold lands. The husband and wife afterwards executed a power of attorney to C., authorising him to surrender the copyhold lands of which the wife was seised in tail to a third person, in order to make him tenant to the præcipe or plaint, in a recovery intended to be suffered in the manor court. The wife, previous to her executing the power of attorney, was examined apart from her husband, by the deputy steward of the manor. The recovery was suffered, and immediately afterwards the premises were surrendered to the same uses as those mentioned in the marriage settlement: Held, that the power of attorney was valid as the act of the husband; he having sufficient interest in his wife's copyhold lands to pass them by surrender during the joint lives of himself and his wife; and that the recovery (which had stood unreversed for twenty years) was, therefore, well suffered. After the above surrender, the wife was admitted to other copyhold lands, which were not surrendered to the use of her will. By her will, made in 1802, she devised her real and leasehold estates to certain persons therein named. At the date of her will and of her death she was seised of freehold estates: Held, that the will was a valid disposition of the copyhold which had been surrendered to the use of her will, though it did not refer to the surrender in which the right of disposition was reserved, and though it was made after she ceased to be a feme covert: Held, further, that the copyholds which had not been surrendered to the use of the will did not pass by the general devise of the real estate, the will having been made before the 55 G. 3. c. 192. E. Southwell, 1833. Doɛ dem. E. Southwell, conveyed to trustees, their heirs and assigns, their freehold and leasehold hereditaments to certain uses, and upon certain trusts, for the benefit of the said Dr. Warren and E. Southwell, during their lives, or the life of the survivor of them, and afterwards for the benefit of the issue of their marriage; and after the deaths of the said Dr. Warren and E. Southwell or the survivor of them, if they died without issue, then, as to the estates of the said Dr. Warren, to himself in fee, and as to the estates of the said E. Southwell, to the use and behoof of such person or persons, and for such estate or estates, &c. as the said E. Southwell by deed or will executed as in the conveyance was mentioned, should, notwithstanding her coverture, and as if she was sole and unmarried, direct or appoint; and for default of such direction, declaration, or appointment, to the use and behoof of the said E. Southwell, her heirs and assigns for ever. And by the same indentures the said Dr. Warren and E. Southwell covenanted that they or the heirs of the said E. Southwell would surrender all and every the copyhold lands, &c. wherein she had any estate, title, or interest, to the same uses, and for the same intents and purposes, as were thereinbefore expressed and declared of and concerning the freehold estates of the said E. Southwell. No surrender was ever made pursuant to the said covenant. The marriage between Dr. Warren and E. Southwell was duly solemnised in 1777. In 1779 the sister Frances died intestate, never having been married, and her surviving sisters, Mary and Elizabeth, were duly admitted to Frances's third part of the lands mentioned in the first count of the declaration as co-heirs in tail. At At a general court baron holden for the said manor of West Walton cum Membris, on the part of Emneth, on the 8th of October 1781, Dr. and Mrs. Warren and Mary Southwell, by James Guy, their attorney, by virtue of a power of attorney under their respective hands and seals, bearing date the 14th day of July 1781, (at the foot of which said power of attorney it was certified by the steward, that Mrs. Warren had been, previously to he execution of the said power of attorney, examined apart from her husband touching her consent to the several matters and charges therein contained and had thereunto freely consented,) surrendered into the hands of the lord of the said manor the entirety of such of the messuages and lands mentioned in the first count of the declaration as were holden of that manor, to the use of H. Watts, in order to make him tenant for the purpose of suffering a common recovery. Such recovery was afterwards suffered by J. Guy, Dr. and Mrs. Warren's attorney, wherein W. Clarke was demandant, the said H. Watts tenant, and the said Dr. Warren and Elizabeth his wife, and Mary Southwell, by J. Guy, their attorney, vouchees; and afterwards one undivided moiety of the said messuages and lands in the first count of the declaration mentioned, holden of the said manor, was surrendered by the demandant to certain uses for the benefit of Dr. Warren and E. his wife, and their issue, with remainder, in default of issue, to the use of such person, &c. as Mrs. Warren, by deed or will, should, notwithstanding her coverture, and as if she was sole and unmarried, declare or appoint, and in default of any such declaration or appointment, to the use of the heirs of the said Elizabeth for ever; and at the same Court the said Elizabeth VOL. V. Z z 1833. Doɛ dem. against BIRD. 1833. Doɛ dem. Elizabeth Warren was admitted according to the form and effect of the said surrender. Common recoveries of the entirety of the other messuages and lands mentioned in the first count of the declaration holden of other manors therein mentioned, were suffered by Dr. and Mrs. Warren and Mary Southwell, under and by virtue of other letters of attorney previously executed by them; and which said other letters of attorney, by a memorandum at the foot thereof, signed by the deputy steward of the several manors, stated the private examination and consent of the said E. Warren previous to the execution thereof by her. None of the said recoveries were suffered by the parties in person: but the first recovery was suffered by J. Guy, attorney of Dr. and Mrs. Warren, and the others by S. Draycott their attorney, in each manor, by the said letters of attorney; and after the suffering of the recoveries one undivided moiety of the messuages and lands in the first count of the declaration mentioned, holden of the several last-mentioned manors respectively, was surrendered by the demandants in the said several recoveries to certain uses for the benefit of Dr. Warren and Elizabeth his wife, and their issue, with remainder, in default of issue, to the use of such person and for such estate as Mrs. Warren, by deed or will to be executed as therein mentioned, should, notwithstanding her coverture, and as if she was sole and unmarried, direct, declare, or appoint, and in default of such declaration or appointment to the use of the heirs of the said Elizabeth for ever. And at the same several courts Mrs. Warren was admitted according to the form and effect of the said several surrenders. All the the court rolls in existence of the said several manors had been searched, and it appeared that, prior to the recovery suffered by Dr. and Mrs. Warren, there were many instances in which recoveries had been suffered by a feme covert in person, but none was found of a recovery suffered by a feme covert by attorney. In the years 1781 and 1782, Dr. and Mrs. Warren surrendered the moiety of the lands (late of Henry Southwell) mentioned in the second count of the declaration, to the same uses as were specified in the marriage settlement. In the year 1790, Elizabeth Warren and Mary Southwell were admitted to other parcel of the said lands, in the second count of the declaration mentioned, (theretofore the property of J. Marshall deceased,) to hold to E. Warren and M. Southwell, and their heirs, in coparcenary, which last-mentioned lands were never surrendered to the use of the will of the said Elizabeth Warren in any way whatever. In 1800, Dr. Warren died, in the lifetime of his wife, without issue. Mrs. Warren did not, in her lifetime, make any appointment by deed, nor did she make any other surrender to the use of her will than that above stated; but by her last will in writing, dated the 1st of December 1802, she devised (amongst other things) all her real and personal estate to J. W. Smith, the lessor of the plaintiff, and S. Trafford, their heirs and assigns, upon certain trusts therein mentioned; and by a codicil bearing even date with her said will, after revoking that part of her will as to the devise to J. W. Smith and S. Trafford, she devised in the words following:-" And as to all the rest and residue of my real estates, and also as to all my leasehold estates whatsoever, I devise and bequeath the Z z 2 same 1833. Doɛ dem. |